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Patna High Court · body

2002 DIGILAW 1222 (PAT)

Boniface Hembrom v. State Of Bihar

2002-11-14

S.N.JHA

body2002
Judgment S.N.Jha, J. 1. The dispute in these two writ petitions on behalf of 24 petitioners relates to admission to the MBBS Course in the Scheduled Tribes (ST) category. The dispute being common the cases have been heard together and are disposed of by this common order. The representative facts may be noticed from the record of CWJC No. 11754 of 2002. 2. The petitioners seek, inter alia, quashing of notice dated 2.10.2002 by which the counselling held between 21.8.2002 and 26.8.2002 for the candidates of PCB (Physics, Chemistry, Biology) Group for admission to the MBBS course on the basis of the Bihar Combined Entrance Competitive Examination, 2002 and the admit orders pursuant to the said counselling have been cancelled. They also seek direction to admit them against seats alloted to them as per the admit orders vide Annexure-5 series to the writ petition. The petitioners further seek quashing of the resolution of the State Government contained in memo no. 466 dated 30.9.2002 of the Personnel and Administrative Reforms Department, reducing the percentage of reservation for the ST category from 10 percent to 1 percent in the matter of admission in different types of educational institutions. However, this larger question was not gone into by the counsel for the parties at the time of hearing. 3. The case of the petitioners is that pursuant to Advt. No. BCECEB (BCECE) 2002/01 inviting applications for the Bihar Combined Entrance Competitive Examination 2002, they applied in the ST category to which they belong and appeared at the admission test which was held in two stages on 24.4.2002 and 11.7.2002 respectively. Their position in the merit list was 4,11,15,43 and 61 respectively. Being successful at the written test they were called for counselling and interview at which they appeared on 24.8.2002 and 25.8.2002 along with necessary papers and they were provisionally allotted seats in the ST category in the Patna Medical College, Patna or Jawaharlal Nehru Medical College, Bhagalpur or Sri Krishna Medical College, Muzaffarpur. However, when they turned up at the respective colleges for admission they were not allowed to take admission on the ground that the admission had been stayed on the instruction of the State Government. However, when they turned up at the respective colleges for admission they were not allowed to take admission on the ground that the admission had been stayed on the instruction of the State Government. On 2.10.2002, however, notice was published in the newspapers informing the candidates at large that the counselling held between 21.8.2002 and 26.8.2002 as well as the admit orders issued pursuant thereto had been cancelled and new dates of counselling would be intimated. The notice stated that this was being done in view of the resolution of the Personnel and Administrative Reforms Department of the State Government dated 30.9.2002 and amendment in the Regulation on Graduate Medical Education 1997. The petitioners learnt on enquiry that resolution dated 30.9.2002 had been issued reducing quota in the ST category from ten percent to one percent with immediate effect and the resolution had been made applicable also to such cases in which examination had been held or applications received but admission were not taken. The case of the petitioners is that the prospectus with respect to the above competitive examination provided the percentage/ratio of reservation for different candidates. The prospectus, further, stipulated that the reservation provisions as existing prior to the commencement of the admission process would apply unless the State Government issues general order in this regard. As the admission process had commenced before issuance of the Government Order dated 30.9.2002, the respondents are obliged to admit students as per the erstwhile reservation provisions. 4. Dr. Sadanand Jha, learned counsel for the petitioners submitted that the admission process commenced on 21.8.2002- if not earlier when the counselling/interview took place continuing upto 26.8.2002 and therefore, as per Clause 14.5 (Ga) of the Prospectus the respondents should admit the candidates in accordance with the earlier reservation provisions. Neither the Government Order dated 30.9.2002 nor Bihar Act 17/2002 by which amendment was made in the Bihar Reservation of Vacancies in Post and Services (for Scheduled Castes, Scheduled Tribes and other Backward Classes) Act, 1991 (in short, the Reservation Act) coming into effect from 27.8.2002 would be applicable. Counsel referred to decisions of the Supreme Court in the cases of Y.V.Rangaiah V/s. J. Sreenivasa Rao, AIR 1983 SC 852 and A. A. Calton V/s. Director of Education, AIR 1983 SC 1143 , and this Court in the case of Sharmila Kumari V/s. The Bihar Public Service Commission, 1995(1) PLJR 275. 5. Counsel referred to decisions of the Supreme Court in the cases of Y.V.Rangaiah V/s. J. Sreenivasa Rao, AIR 1983 SC 852 and A. A. Calton V/s. Director of Education, AIR 1983 SC 1143 , and this Court in the case of Sharmila Kumari V/s. The Bihar Public Service Commission, 1995(1) PLJR 275. 5. Two counter affidavits one sworn by the Dy. Secretary, Personnel and Administrative Reforms Department on behalf of the State Government and another sworn by the Controller of Examination, Bihar Combined Entrance Competitive Examination Board have been filed. In the affidavit of the State it has been stated that upon division of the State of Bihar under the Bihar Re-organisation Act on 15.11.2000 the percentage of population of the scheduled tribes reduced from 7.66 percent to 0.89 percent while the percentage of the scheduled caste category increased from 14.55 to 15.47 percent. The Government accordingly decided to change the reservation ratio according to population. Thus the reservation percentage for the ST category was reduced from ten percent to one percent by amending the Reservation Act vide Bihar Act 17/2002. In accordance with the amendment Government Order was issued vide Resolution no. 456 dated 30.9.2002 of the Personnel and Administrative Reforms Department with respect to admission in educational institutions including institutions imparting medical education. Reliance has been placed on Clause 14.5 (kha) of the Prospectus which provides that after the reorganisation of the State the reservation percentage will be in accordance with the decision of the government for the successor State of Bihar. Reliance is also placed on Section 16 of the Reservation Act which provides that notwithstanding anything contrary in any other law and rules for the time being in force, any judgment or decree of Court, any order, notification, circular, scheme, rule or resolution made or issued, the provisions of the Act shall have effect. 6. In the counter affidavit of the Examination Board it has been stated that the Board has been conducting since 1997 Bihar Combined Entrance Competitive Examination under the provisions of the Bihar Combined Competitive Examination Act, 1995 for selecting candidates for admission to the first year degree course in Medical, Ayurvedic, homeopathic streams in different colleges/institutions in the State of Bihar as well as the Regional Engineering Colleges situated outside Bihar against Bihar quota of seats. The Board thus conducted the examination in two stages on 24.4.2002 and 11.7.2002. The Board thus conducted the examination in two stages on 24.4.2002 and 11.7.2002. The first counselling for the PCB group of candidates was held between 21.8.2002 and 26.8.2002 for Medical, Dental, Veterinary, Ayurvedic, Homeopathic and B.Pharma Courses on merit-cum-choice basis. While checking the eligibility of candidates, during counselling, for admission in medical colleges, the provisions of Sections 5(i) and 5(ii) of Chapter II of the MCI Regulation of Graduate Medical Education-1997 were followed and accordingly, candidates who did not obtain 50% marks in English subject at the qualifying examination i.e. plus two or l.Sc. examination, were treated as ineligible for seat allotment. However, before admission on the basis of the above counselling, could take place, the Principal of Patna Medical College, Patna by letter dated 30.8.2002 informed the Board about MCI amendment in Graduate Medical Education Regulation, 1997 relaxing the qualifying marks in English subject for admission to the MBBS course. The examination Board took immediate action and issued letter no. 923/2002 dated 31.8.2002 to all concerned colleges to stop taking admission on the basis of the counselling held between 21.8.2002 and 26.8.2002. The Board also wrote letter no. 922/2002 dated 31.8.2002 to the State Government seeking clarification in respect of the above amendment in the Graduate Medical Education Regulation. The Department vide letter no. 445(1) dated 3.9.2002 sent photo copy of the amendment. Meanwhile the Board was also informed about the coming into force of the amended provisions of the Reservation Act vide Bihar Act 17/2002 published in the Bihar Gazette dated 27.8.2002, Section 2 whereof changed the percentage/ratio of reservation in different reserved categories and Section 1(2) enforced the provision "with immediate effect". Soon thereafter on 30.9.2002 the State Government in the Personnel and Administrative Reforms Department also issued memo no. 458 dated 30.9.2002 communicating the implementation of the new reservation provisions/policy in the matter of admission in different types of educational institutions including Medical Educational Institutions. Para 4 thereof lays down that where admissions have not been taken as yet the new reservation policy will apply. 7. Dr. 458 dated 30.9.2002 communicating the implementation of the new reservation provisions/policy in the matter of admission in different types of educational institutions including Medical Educational Institutions. Para 4 thereof lays down that where admissions have not been taken as yet the new reservation policy will apply. 7. Dr. Sadanand Jha, on behalf of the petitioners submitted that the admit orders were issued to the petitioners on 24/ 25.8.2002 and a right therefore accrued to them to be admitted and had they been admitted immediately thereafter, they would not have hit by the amendment in the Reservation Act or the Government Order which came into force on 27.8.2002 and 30.9.2002 respectively. However, admissions were arbitrarily denied. Meanwhile Reservation Act and the Government Order came. Shri P.K.Shahi appearing on behalf of the Controller of Examination submitted that as explained in the counter affidavit admissions were not denied on account of impending amendment in the Reservation Act so as to stall the admission of the selected candidates, the same was on account of exclusion of candidates securing less marks in English subject at the qualifying examination. Since by virtue of the relaxation granted by the MCI they could not be excluded from selection, the counselling held between 21.8.2002 and 26.8.2002 had to be cancelled. Shri Shahi further submitted that there being common entrance examination for different streams, there cannot be two yardsticks/norms one for admission in medical colleges and another for admission in other types of colleges and therefore, the Court should not issue any direction for admission of the petitioners on the basis of counselling held between 21.8.2002 and 26.8.2002 as per the erstwhile reservation percentage since for other streams/courses, in view of the amendment in Reservation Act as well as the Government Order dated 30.9.2002, candidates will have to be admitted in accordance with the revised/amended reservation provisions. l find substance in these submissions. 8. Coming to the main question as to whether any right accrued to the petitioners by virtue of the fact that the admission process commenced before coming into force of the amendment in the Reservation Act and/or the Government Order the relevant provisions of the prospectus may be noticed. It may be mentioned here that the provisions relating to admission in the medical stream are contained in Para 15; however, as regards reservations the same provisions as contained in Para 14.5 relating to Engineering, B. Pharma etc. It may be mentioned here that the provisions relating to admission in the medical stream are contained in Para 15; however, as regards reservations the same provisions as contained in Para 14.5 relating to Engineering, B. Pharma etc. streams are applicable. Clause kha of Para 14.5. provides the reservation percentage to wit, 14% for the scheduled castes, 10% for the scheduled tribes, 14% for the Extremely Backward Classes 10% for Backward Classes and 2% for the Reserved Category Girls. However, second part of clause kha lays down that after the re-organisation of the State of Bihar, the above reservation percentage shall be subject to the decision of the government of successor State of Bihar. Clause Ga provides that till another order is issued by the State Government in this regard i.e. in regard to reservation percentage prior to commencement of the admission process, the reservation shall be in accordance with that government order. Since the petitioners claim rests on the above clause Ga it would be apt to quote the same as under: Is Sambandh men agar rajya sarkar koi dusra rajyadesh namankan prakriya prarambh hone ke pahle tak jari karti hai tab usi rajyadesh ke anurup arakshan prabdhan lagu hoga. As indicated above, the submission of the counsel for the petitioners is that as per clause Ga of para 14.5, the amended provision can be applied only if government order in this regard were issued prior to the commencement of the admission process, and as in the instant case, the process commenced prior to the issuance of the impugned Government Order, or Bihar Act 17/2002, they cannot be applied retrospectively. 9. The prospectus provides for admission on the basis of two-tier written test followed by counselling. Para 10.6 provides for merit list on the basis of the two examinations and para 11 lays down that after the second stage examination, the candidates shall be called for interview on the basis of merit list. The candidates shall then be alloted course/college on the basis of the choice and on the basis of their merit position. After they are allotted course and college on the basis of merit-cum- choice, they will be admitted in the respective course/college subject to medical fitness. The candidates shall then be alloted course/college on the basis of the choice and on the basis of their merit position. After they are allotted course and college on the basis of merit-cum- choice, they will be admitted in the respective course/college subject to medical fitness. Even if the argument of the counsel for the petitioners is accepted that counselling should be treated as commencement of the admission process, it would appear that the counselling was cancelled on a ground which cannot be said to be irrelevant. It is obvious that by virtue of the relaxation by the MCI, candidates earlier exluded on the ground of less marks in English subject had to be considered. Such consideration was likely to result in change of allotment of course or college earlier allotted. A candidate allotted, say, Patna Medical College, Patna earlier could be allotted any other college or course not of his choice. Where such change results from non-joining the course/college, the position may be different. That may be continuation of the earlier process. But in the instant case the counselling stood cancelled as a whole. In the meantime Reservation Act came into force providing different percentage of reservation for different categories with immediate effect. The erstwhile reservation percentage in the circumstances could not be applied. This is also the import of the second part of clause kha of para 14.5. While the first part of clause kha mentions the percentage of reservation for different categories, the latter part lays down that this will be subject to any government order which may be issued by the government of successor State of Bihar after re-organisation of the State. That is in the nature of proviso to the main clause. In my opinion, clause Ga has to be read along with the second part of clause kha, and a conjoint reading leaves no room for doubt that the erstwhile reservation percentage was subject to change which was in offing as a result of re-organisation of the State. It need hardly to emphasise that as a result of division of the State the demography substantially changed. The area inhabited by scheduled tribes now comprise the State of Jharkhand and therefore, there cannot be any justification to continue the same percentage of reservation for them in the successor State of Bihar. It need hardly to emphasise that as a result of division of the State the demography substantially changed. The area inhabited by scheduled tribes now comprise the State of Jharkhand and therefore, there cannot be any justification to continue the same percentage of reservation for them in the successor State of Bihar. It is for this reason that the decisions relied upon on behalf of the petitioners are not relevant. 10. In the case of Y.V. Rangaiah V/s. J. Sreenivasa Rao (supra) the question for consideration was whether the old vacancies were required to be filled in accordance with the Rule 4(a)(1) (i) of the Andhra Pradesh Registration and Subordinate Service Rules. The rule provided for yearwise preparation of panel filling the vacancies by promotion. The Court held that the rule enjoined upon the authorities to prepare panel, yearwise, and if panels were not prepared at appropriate time, they could be directed to do so and prepare it for the remaining years as per the erstwhile rules. In the case of A.A. Calton V/s. The Director of Education (supra), the High Court had earlier issued direction between the contesting parties for filling the post by direct recruitment. Later the provision was amended. The amended provisions provided for a different procedure by direct recruitment. The proceeding for such selection commenced but in the meantime the relevant provision was amended. The Supreme Court held that the amendment which was not retrospective would not affect the proceedings. In Sharmila Kumari vs. Bihar Public Service Commission, (supra) this Court held that the provisions of Section 4 of the Bihar Reservation of Vacancies in Posts and Services (For Scheduled Castes, Scheduled Tribes and other Backward Classes) Act, giving retrospective effect to the substantive provisions relating to reservation is not applicable. 11. In the instant case in the prospectus itself, if I may say so, seed had been sown for amendment in the reservation percentage which was in offing as a result of division of the State of Bihar. The prosepectus contained sufficient indication of the fact that the reservation percentage as mentioned in Clause Kha para 14.5 was likely to be changed and the same will be subject to decision of the government of the successor State. In that view of the matter, the above said decisions relied upon by the counsel, have no application. The prosepectus contained sufficient indication of the fact that the reservation percentage as mentioned in Clause Kha para 14.5 was likely to be changed and the same will be subject to decision of the government of the successor State. In that view of the matter, the above said decisions relied upon by the counsel, have no application. As a matter of fact, counsel for the petitioners also fairly agreed at one stage of hearing that if the petitioners do not come within the purview of Clause Ga of para 14.5, they have no case. In my view, as indicated above, clause Ga has to be read along with Second part of clause kha of para 14.5 and so read, there does not appear to be any doubt that the selection process commencing from the written test was subject to the revised/amended reservation percentage. 12. Before I part with the case, in fairness to the counsel for the State mentioned that submission of Shri Ashok Kumar Singh, Standing Counsel no. 3, may be noticed. According to him, the selection of the petitioners, like empanelment of candidates for appointment, did not create any absolute indefeasible right in their favour which can be enforced after executive order dated 30.9.2002 or even statutory amendment. In support of his contention he placed reliance on Jai Singh Dalai V/s. State of Haryana, 1993 (Supp. 2) SCC 600 and Rajasthan Public Service Commission V/s. Chanan Ram, (1998)4 SCC 202 . In view of my conclusions that the petitioners have no case even as per the terms of the prospectus, it is not necessary to go into the above aspect of the case. 13. In the result, I do not find any merit in these writ petitions which are accordingly dismissed.